*

Honorable John H. Moore, II, Senior U.S. District Judge for

the Middle District of Florida, sitting by designation.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 97-8074

________________________

D. C. Docket No. 1:94-CV-2193-CC

RUST INTERNATIONAL CORPORATION,

Plaintiff-Third Party Defendant,

FARID HABEISHI,

Plaintiff-Third Party Defendant, Appellee,

versus

GREYSTONE POWER CORPORATION, an

Electric Membership Corporation,

Defendant-Third Party Plaintiff, Appellant,

JAMES CURTIS TERRY,

Third Party Defendant-Appellee.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(January 26, 1998)

Before ANDERSON and BLACK, Circuit Judges, and MOORE*, Senior

District Judge.

PER CURIAM:
1 Greystone also raised the following issues on appeal: (1) whether the district court erred

in prohibiting Greystone from cross-examining Terry and Habeishi regarding the claims against each

other they previously had settled; and (2) whether the district court erred in not admitting testimony

from a law enforcement officer that the intersection had been navigated safely by vehicles passing

through it for several hours prior to the accident. After considering the briefs and record, we hold

that the district court did not err in either of these evidentiary rulings.

2

 Because we are reviewing the denial of a renewed motion for judgment as a matter of law,

we consider the evidence, and state the facts in this part of the opinion, in the light most favorable

to Appellees Terry and Habeishi.

2

This case arises from a motor vehicle accident in which a vehicle driven by

Appellee James Curtis Terry (Terry) and a vehicle driven by Appellee Farid

Habeishi (Habeishi) collided in an intersection where the traffic signal was

inoperative. Terry and Habeishi each suffered personal injuries, and Terry’s spouse

and Habeishi’s spouse both died as a result of the collision. Appellant Greystone

Power Corporation (Greystone) had contracted with Fulton County, Georgia, to

provide power to the traffic signals at the intersection. The jury returned a verdict

finding Greystone 75% liable for the accident. We address two issues raised by

Greystone on appeal: (1) whether Greystone had a duty of care to Terry, Habeishi,

and their respective spouses under Georgia law, and therefore can be held liable in

tort; and (2) whether the district court erred in apportioning liability for the

wrongful death actions based on Greystone’s percentage of fault rather than holding

each of the joint tortfeasors jointly and severally liable in equal proportions.1

I. FACTUAL AND PROCEDURAL BACKGROUND2
3

The traffic signals that controlled the intersection failed in the early morning

hours of August 23, 1992. Fulton County was informed of the power outage and

sent a technician to examine the intersection. Fulton County’s technician

determined that the problem was a lack of power flowing to the signals from

Greystone’s side of the power line. Fulton County notified Greystone of the

problem at 9:00 a.m. and Greystone immediately dispatched its own technicians.

Greystone’s technicians arrived at the scene between 9:05 and 9:10 a.m. and

inspected the connection between Greystone’s power wires and Fulton County’s

wires, which carried the power directly to the signals. Greystone’s technicians

erroneously concluded that the power failure occurred on Fulton County’s side of

the line and notified Greystone’s dispatcher at 9:30-9:35 a.m. that Fulton County

needed to make the repair.

The collision between Terry’s vehicle and Habeishi’s vehicle occurred at

10:00 a.m. After witnessing the collision, the Greystone technicians again

examined the connections and concluded that the problem was with the connector,

which Greystone had exclusive authority to repair. The Greystone technicians

repaired the connector, thereby restoring power to the signals. The repair effort

took 5-10 minutes to complete.
3 The jury made the following valuations of the injuries suffered as a result of the accident:

$2,181,000 for Terry’s personal injuries; $2,050,000 for the life of Terry’s wife; $1,517,000 for

Habeishi’s personal injuries; and $3,000,000 for the life of Habeishi’s wife. Pursuant to the pretrial

stipulation, the district court entered judgment against Greystone for 75% of each of these amounts.

4

The procedural history of this case is fairly complex. Several claims were

settled. Four claims against Greystone were tried to the jury: (1) the claim of Terry

for Terry’s personal injuries; (2) the claim of Terry for the wrongful death of his

spouse; (3) the claim of Habeishi for Habeishi’s personal injuries; and (4) the claim

of Habeishi for the wrongful death of his spouse. The jury concluded that

Greystone was negligent and that Greystone’s negligence was a contributing

proximate cause of the collision. The jury found Greystone 75% at fault, Terry

15% at fault, and Habeishi 10% at fault.3

 The district court denied Greystone’s

motion for judgment as a matter of law and Greystone’s renewed motions for

judgment as a matter of law.

II. GREYSTONE’S DUTY OF CARE

The parties dispute whether Greystone owed any duty of care to Terry and

Habeishi. For a plaintiff to recover in tort, the defendant must owe a duty of care

to the plaintiff. Ga. Code Ann. §§ 51-1-1, 51-1-8; Robinson v. J. Smith Lanier &

Co., 470 S.E.2d 272, 274 (Ga. 1996). Terry and Habeishi argue that Greystone

owes the same duty of care to the general public that tort law imposes on all

individuals in conducting their affairs, specifically that “a person owes to others a
4 Sutter has been abrogated on other grounds as recognized in Riley v. H&H Operations,

Inc., 436 S.E.2d 659, 660-61 (Ga. 1993).

5

 Greystone also asserts that its actions were not the proximate cause of the accident.

Assuming that Greystone owed a duty of care to Terry and Habeishi, we hold that sufficient

evidence was presented for the jury to determine that Greystone’s conduct was one of the proximate

causes of the accident.

5

duty not to subject them to an unreasonable risk of harm.” Sutter v. Hutchings, 327

S.E.2d 716, 718 (Ga. 1985).4

 Greystone responds that a utility company does not

owe a general duty of care to persons traveling through an intersection where the

signals are powered by the utility company.5

 Greystone cites Tollison v. Georgia

Power Co., 187 S.E. 181 (Ga. Ct. App. 1936), and Quinn v. Georgia Power Co., 180

S.E. 246 (Ga. Ct. App. 1935), which stand for the proposition that a utility company

owes no duty to the general public where an accident occurs due to the company’s

failure to have a street lamp burning at the point of the accident. Quinn provides

two rationales for its holding: (1) the absence of contractual privity between the

power company and the general public; and (2) the absence of any duty upon the

city to provide lighting at the point of the accident. 180 S.E. at 248. Tollison arose

from the same accident as Quinn, and the Tollison court relied on both of Quinn’s

rationales. 187 S.E. at 182.

Terry and Habeishi argue in response that even if Greystone did not have a

general duty to maintain power to the intersection, Greystone assumed a specific
6 Ga. Code Ann. § 32-6-50 (c) provides that “counties and municipalities shall place and

maintain upon the public roads of their respective public road systems such traffic-control devices

as are necessary to regulate, warn, or guide traffic . . . .”

7

 At oral argument, Appellees’ counsel conceded that Greystone would have no liability had

it not undertaken the repair effort.

6

duty to travelers passing through this particular intersection by voluntarily

undertaking to repair the connector. Georgia has adopted § 324A of the Restatement

(Second) of Torts entitled “Liability to Third Person for Negligent Performance of

Undertaking,” which establishes that:

One who undertakes, gratuitously or for consideration, to render services

to another which he should recognize as necessary for the protection of

a third person or his things, is subject to liability to the third person for

physical harm resulting from his failure to exercise reasonable care to

protect his undertaking, if (a) his failure to exercise reasonable care

increases the risk of such harm, or (b) he has undertaken to perform a

duty owed by the other to the third person, or (c) the harm is suffered

because of reliance of the other or the third person upon the undertaking.

Huggins v. Aetna Cas. & Sur. Co., 264 S.E.2d 191, 192 (Ga. 1980). The parties

contest whether any of the three alternative criteria for imposing liability has been

satisfied. The evidence presented at trial supports the conclusion that Greystone

undertook to perform Fulton County’s duty to maintain the operability of the traffic

signals,6

 or that Fulton County relied on Greystone to restore power to the intersection

because Fulton County was contractually prohibited from repairing the connector

itself.7

 Accordingly, Greystone’s negligence occurred at the moment that its
8 Although Appellees’ counsel have responded to the argument that Tollison and Quinn

provide blanket immunity from a duty of care voluntarily assumed by a power company,

Greystone has not made any argument in its briefs or at oral argument explaining why the

rationales of Tollison and Quinn would override the standards for voluntarily assuming a duty of

care pursuant to the Restatement.

7

technician misdiagnosed the problem with the connector and therefore failed to

exercise reasonable care in making the repair.

The conclusion that Greystone voluntarily assumed a duty of care to Terry

and Habeishi is not affected by the holdings in Tollison and Quinn.

8

 The

Restatement, which was adopted after Tollison and Quinn, provides three methods

by which a party such as Greystone may assume a specific duty towards third

persons to whom it would not otherwise owe any duty. Tollison and Quinn do not

foreclose the possibility that a power company might assume a specific duty

towards third persons and then perform that duty in a negligent manner.

Accordingly, we hold that under Georgia law, Greystone assumed a duty of care

towards Terry and Habeishi to restore power to the intersection.

III. APPORTIONMENT OF LIABILITY

Greystone argues that the district court erred by apportioning the judgment

for the wrongful death claims among the three liable parties (Greystone, Terry, and

Habeishi). Under Georgia law, liability may be apportioned among joint tortfeasors

only if the plaintiff was negligent and was therefore partly responsible for the injury.
9

 Greystone’s theory is based on the derivative nature of a wrongful death action—it is not

an independent tort, but a method of allowing survivors to recover for the injuries suffered by the

decedent. Greystone contends that the plaintiff of each wrongful death claim is the deceased spouse

(Mrs. Terry and Mrs. Habeishi, respectively) and that each claim has two tortfeasors, each of whom

should be 50% liable: (1) Greystone; and (2) the non-spouse driver (i.e., Mr. Terry is the second

defendant of Mrs. Habeishi’s action, and Mr. Habeishi is the second defendant of Mrs. Terry’s

claim). Greystone suggests that Terry and Habeishi cannot be liable for the death of their own wives

because of spousal immunity, meaning that only two defendants are liable in each action.

8

Ga. Code Ann. § 51-12-33. If the plaintiff is not partly responsible for the injury,

joint tortfeasors are equally liable for the judgment, regardless of their relative

degree of responsibility. Gamble v. Reeves Transp. Co., 190 S.E.2d 95, 97 (Ga. Ct.

App. 1972). After the jury determined that Greystone was 75% responsible and that

Terry and Habeishi were collectively 25% responsible, the district court apportioned

liability for damages by entering a judgment against Greystone for 75% of the

damages on all four claims.

Greystone does not dispute the district court’s apportionment for the personal

injuries suffered by Terry and Habeishi. Greystone argues that in a wrongful death

action, the relevant “plaintiff” is the deceased victim of the injury and not the

beneficiary bringing the suit, i.e., the deceased spouses of Terry and Habeishi and

not Terry and Habeishi themselves.9

 Therefore, Greystone argues that the trial court

erred in apportioning liability based on each party’s percentage of fault because the

deceased spouses were not negligent.
10 Blackwell was modified on other grounds by statute as recognized in Fountain v.

Thompson, 312 S.E.2d 788, 789 (Ga. 1984).

9

Greystone is correct that Georgia law does look to the behavior of the

decedent in determining the relative liability of the defendant in a wrongful death

action. Southland Butane Gas Co. v. Blackwell, 88 S.E.2d 6, 9 (Ga. 1955);10 Rainey

v. City of East Point, 328 S.E.2d 567, 568-69 (Ga. Ct. App. 1985). However,

Georgia law also looks to the negligence of the beneficiary of the action and applies

the same principles of contributory and comparative negligence to the beneficiary

as it applies to the decedent. Happy Valley Farms v. Wilson, 16 S.E.2d 720, 725

(Ga. 1941) (establishing that when two beneficiaries bring a wrongful death action

and one beneficiary is partly responsible for the death, contributory negligence

principles are applied to the one-half of the judgment recovered by the negligent

beneficiary); Matthews v. Douberly, 428 S.E.2d 588, 590-91 (Ga Ct. App. 1993)

(finding that husband’s contributory negligence bars husband’s recovery in action for

wrongful death of wife, but does not bar child’s recovery). We hold that Georgia law

treats both the beneficiary and the decedent as plaintiffs when determining whether

to apportion liability in a wrongful death action.

IV. CONCLUSION

The district court properly determined that under the facts of this case,

Greystone owed a duty of care to Terry, Habeishi, and their respective spouses.
10

Furthermore, the district court did not err in apportioning the judgment among the

liable parties.

AFFIRMED.